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Other Federal Law/Rule (Judge Gargotta)

Fed. R. Civ. P. 8Texas Architectural Aggregate v. ACM-Texas, LLC (April 29 2010)Issue: In its Fifth Amended Petition, TAA plead the following causes of action: (1) lack of contract/breach of contract; (2) fraud; (3) unjust enrichment; (4) accounting and damages; (5) conversion; (6) trespass; (7) tortious interference; (8) negligence; and (9) TAA asks for a declaratory judgment regarding the rights, status and legal relations under the April 2, 1999 Letter Agreement. In its Second Amended Original Answer, ACM counter-claimed: (1) breach of contract; (2) breach of mine mill site lease; (3) tortious interference with property rights; (4) wrongful eviction; (5) fradulent misrepresentation and inducement; (6) fraud by non-disclosure; (7) detrimental reliance/promissory estoppel; (8) trespass/misappropriation of business information; (9) theft; (10) trespass by TAA onto defendant‘s property; 11) theft of defendant‘s mineral property; 12) specific performance; 13) credit and or offset; 14) ACM asks the court to enjoin TAA from harming employees and equipment; and 15) ACM asks the court to enter a declaratory judgment establishing its mineral, surface, and leasehold rights at Marble Canyon.Holding: The Court finds that the April 2, 1999 Letter Agreement is not an enforceable contract. The Court also finds that TAA‘s fraud, accounting, tortious interference, and negligence claims should be denied. As to TAA‘s unjust enrichment cause of action, the Court finds that it should be granted. In compensation for ACM‘s unjust enrichment, the Court finds that TAA is entitled to recover damages in the amount of $7,125,073.08. Further, the Court finds that TAA‘s conversion cause of action should be granted. Nevertheless, the court also finds that TAA‘s damages in relation to ACM‘s conversion are incorporated in the damages awarded for ACM‘s unjust enrichment, and TAA cannot recover additional damages for conversion. Similarly, the Court finds that TAA‘s trespass cause of action should be granted, but damages in relation to ACM‘s trespass are incorporated in the damages awarded for ACM‘s unjust enrichment, and TAA cannot recover additional damages for trespass. As to ACM‘s counterclaims, the Court finds that its breach of contract claim as to both the Letter Agreement and Mine Mill Site Lease, tortious interference, wrongful eviction, fraudulent misrepresentation and inducement, fraud by non-disclosure, trespass/misappropriation of business information, theft, trespass on defendant‘s property, and theft of defendant‘s mineral property claims should be denied. The Court also finds that ACM‘s detrimental reliance/promissory estoppel claim should be granted and that ACM is entitled to recover $75,000 from TAA as reliance damages. The Court finds that all other relief requested by the parties should be denied.

Douglas v. Langehennig (Jul. 28, 2008)Issue: The Plaintiff alleges three causes of action: (1) for a judgment declaring that at least a portion of the proceeds of the sale of the Home is her separate property; (2) for the imposition of a constructive trust on at least a portion of the proceeds of the sale of the Home; and (3) for a judgment declaring that she had a homestead interest in the Home and is therefore entitled to proceeds of its sale to the extent of the value of that interest.Holding: The Court finds that the Trustee’s Motion to Dismiss should be denied with respect to the Plaintiff’s claims to declare all or a portion of the Home’s proceeds as her separate property and to impose a constructive trust on those proceeds. With respect to the Plaintiff’s claim based on her assertion of a state law homestead interest in the Home, the Court finds that the Motion to Dismiss should be granted, and this claim should be dismissed.

Fed. R. Civ. P. 9Walser v. TMG (January 25, 2011)Issues: (1) Is Walser’s Recording Agreement with Debtor’s predecessor-in-interest an executory contract? If so, does it allow Plaintiffs to pursue causes of action against the predecessor’s bankruptcy plan? (2) Did Debtors breach recording contracts with Walser, entitling Plaintiffs to damages? Is rescission a viable remedy? (3) Did Defendants breach a fiduciary duty with Walser? (4) Should the corporate veil be pierced with respect to Defendants, and Defendants be held liable for Plaintiff’s claims against Debtors?Holding: (1) The Court holds that the Walser contract was an executory contract that Debtors assumed after the predecessor’s bankruptcy and that Walser is prohibited from filing causes of action that relate to the predecessor’s bankruptcy. (2) Defendants are not required to surrender master recordings for breach of contract, and there is not sufficient evidence to establish fraud. The Court finds that the Defendants did breach the contract and that the Defendants failed to properly cure during the period provided for cure. Therefore, contract damages should be awarded to Plaintiffs. Plaintiffs’ rescission claims are barred by both Federal Copyright law and Texas state law. (3) Defendants did not breach a fiduciary duty because Debtors did not owe Walsen a fiduciary duty. (4) The Court finds that Plaintiffs’ contentions to pierce the corporate veil also fail because their claims fail to satisfy the requirements of Tex. Bus. Org. Code § 21.223.

Materials Products v. Ortiz (Aug. 27, 2010)Issue: If a Complaint is filed under Section 523(a)(2), does that encompass both Section 523(a)(2)(A) and (B)?Holding: The Court finds unpersuasive Plaintiff’s assertion that in filing its Complaint under Section 523(a)(2), the Plaintiff incorporated sections (A) and (B). Plaintiff refers and cites to § 523(a)(2)(A), but never mentions § 523(a)(2)(B). Dismissal, not leave to amend, is appropriate because the Plaintiff failed to plead facts supporting non-dischargeability on the grounds it cites, Section 523(a)(2)(A).

Fed. R. Civ. P. 11Baum et al v. Red (January 15, 2010)Issue: Are sanctions warranted against Defendant and his counsel for making false statements to the Court when a Motion for Relief from Judgment was filed asserting that a State Court’s final judgment and order was based only on a negligence theory of liability and that Plaintiffs had dropped their claims for intentional wrongful death when in fact neither were found to be true?Holding: Sanctions are warranted. As such, Defendant and his counsel are ordered, jointly and severally, to pay the costs of travel and lodging expended by both Plaintiffs’ counsel and to pay Plaintiffs’ counsel for attorney’s fees in connection with the filing of frivolous and vexatious pleadings with the Court that were filed to harass, humiliate, and injure Plaintiffs.

Equitable Investors of Texas, LLC v. Cothran (December 8, 2009)Issue: Are two letters, which counsel attached to Response to Show Cause Order, sufficient compliance with 21 day notice “safe harbor” requirement of Federal Rule of Civil Procedure 11 (which is incorporated into Federal Rule of Bankruptcy Procedure 9011)?Holding: No. This Court finds that the letters to Plaintiffs’ counsel are not “substantial compliance,” let alone the strict requirement of formal service of the motion applicable in this Circuit. These letters do not equate to, nor substitute for, notice that the Defendants would seek Rule 9011 sanctions against the Plaintiffs if a particular pleading were not corrected or withdrawn within 21 days’ notice.

Norman v. Norman (March 3, 2009)Issue: Should sanctions be imposed under Federal Rule of Bankruptcy Procedure 9011 and/or as damages, in the form of attorneys’ fees and expenses being awarded, for the Defendant’s breach of contract under Texas law?Holding: The Court finds that the Motions for Sanctions, to the extent based on Rule 9011, should be denied. Additionally, the Court finds, based on the parties’ intent, that Plaintiff has waived any claim for his attorneys’ fees and expenses as damages for the Defendant’s delay in signing the Settlement Agreement. For this reason, the Court finds that the Motion for Sanctions, to the extent it is based on a breach of contract, should be denied as well because the Plaintiff did not comply with the technical requirements of Rule 11.

Polk Sullivan, LLC v. The Parks (October 19, 2010)Issue: Whether Plaintiffs’ claims meet the plausibility standard required to withstand a motion to dismiss for failure to state a claim?Holding: The Court finds that the Plaintiffs pled with enough specificity under the doctrine of quasi-estoppel in North Carolina law to withstand a motion to dismiss. The Court also finds that Plaintiffs’ claim for specific performance of obligations to construct improvements and grant easements also withstands the motion to dismiss because at the pleading stage the Court is to take the Plaintiffs’ allegations as true. Defendants’ contention that the agreement was too burdensome and unspecific should not be considered when determining the plausibility of a 12(b)(6) motion to dismiss. The Motions to Dismiss are denied.

Roberts v. McConnell (November 19, 2009)Issue: Whether the Trust instrument gave the Debtor the right to withdraw money from the Trust at the time he filed for bankruptcy, thereby making the funds part of the bankruptcy estate?Holding: According to the terms of the Trust, Debtor did not have the right to withdraw any money, and therefore this Court cannot force Trustee to remit any funds from the Trust. Defendants’ Motion to Dismiss Under Rule 12(b)(6) should be granted.

Langehennig v. Argent Mortgage Company, LLC (In re Aston) (October 8, 2008)Issue: Should Motion to Dismiss be granted, because (1) Court lacks subject matter jurisdiction because the proceeding is not a “core” or “related to” proceeding as required for jurisdiction under 28 U.S.C. § 1334; and/or (2) Plaintiffs are judicially estopped from bringing their home equity loan cause of action because the claim against Defendant was not listed in Plaintiffs’ schedules as an asset of the estate; and in the alternative, (3) even if jurisdiction existed and judicial estoppel do not apply, Plaintiffs seeks relief against a party not before the Court because they have only sued Defendant as the originating lender and have not sued the current owner and holder of the note and lien?Holding: Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction and/or based on Judicial Estoppel; and in the alternative, Motion to Dismiss for Lack of Standing is denied.

Douglas v. Langehennig (Jul. 28, 2008)Issue: The Plaintiff alleges three causes of action: (1) for a judgment declaring that at least a portion of the proceeds of the sale of the Home is her separate property; (2) for the imposition of a constructive trust on at least a portion of the proceeds of the sale of the Home; and (3) for a judgment declaring that she had a homestead interest in the Home and is therefore entitled to proceeds of its sale to the extent of the value of that interest.Holding: The Court finds that the Trustee’s Motion to Dismiss should be denied with respect to the Plaintiff’s claims to declare all or a portion of the Home’s proceeds as her separate property and to impose a constructive trust on those proceeds. With respect to the Plaintiff’s claim based on her assertion of a state law homestead interest in the Home, the Court finds that the Motion to Dismiss should be granted, and this claim should be dismissed.

In re Rambo Imaging, L.L.P. (Nov. 8, 2007)Issue: Should an involuntary petition be dismissed based on Rule 12(b)(1) or 12(b)(6)? Also, should the Court look beyond the pleadings?Holding: The Court finds that the requirements of § 303(b) are not jurisdictional, and the Court has jurisdiction in this case. Therefore, the Court will treat the Motion to Dismiss under Rule 12(b0(6) for failure to state a claim for relief. The Court notes that the one of the purposes of Rule 12(b) is to quickly dispose of meritless litigation. The Court finds this is not the case in this Motion, and there should instead be a prompt trial on the merits.

Fed. R. Civ. P. 15(a)Crescent Resources v. Burr (July 22, 2011)Issue: Does the Plan of Reorganization “specifically and unequivocally” retain the causes of action alleged in the Complaint?Holding: This Court finds that (1) the Plan preserved the claims made in the Complaint under Sections 544, 548, and 550 and turnover claims with language which was specific and unequivocal, (2) the Plan does not preserve the claims made in the Complaint under “state fraudulent transfer law,” and (3) the Court grants leave for the Plaintiff to amend the Complaint consistent with this Opinion. The Defendant’s Motion to Dismiss should be DENIED in part and GRANTED in part.

Fed. R. Civ. P. 52Texas Architectural Aggregate v. ACM-Texas, LLC (April 29 2010)Issue: In its Fifth Amended Petition, TAA plead the following causes of action: (1) lack of contract/breach of contract; (2) fraud; (3) unjust enrichment; (4) accounting and damages; (5) conversion; (6) trespass; (7) tortious interference; (8) negligence; and (9) TAA asks for a declaratory judgment regarding the rights, status and legal relations under the April 2, 1999 Letter Agreement. In its Second Amended Original Answer, ACM counter-claimed: (1) breach of contract; (2) breach of mine mill site lease; (3) tortious interference with property rights; (4) wrongful eviction; (5) fradulent misrepresentation and inducement; (6) fraud by non-disclosure; (7) detrimental reliance/promissory estoppel; (8) trespass/misappropriation of business information; (9) theft; (10) trespass by TAA onto defendant‘s property; 11) theft of defendant‘s mineral property; 12) specific performance; 13) credit and or offset; 14) ACM asks the court to enjoin TAA from harming employees and equipment; and 15) ACM asks the court to enter a declaratory judgment establishing its mineral, surface, and leasehold rights at Marble Canyon.Holding: The Court finds that the April 2, 1999 Letter Agreement is not an enforceable contract. The Court also finds that TAA‘s fraud, accounting, tortious interference, and negligence claims should be denied. As to TAA‘s unjust enrichment cause of action, the Court finds that it should be granted. In compensation for ACM‘s unjust enrichment, the Court finds that TAA is entitled to recover damages in the amount of $7,125,073.08. Further, the Court finds that TAA‘s conversion cause of action should be granted. Nevertheless, the court also finds that TAA‘s damages in relation to ACM‘s conversion are incorporated in the damages awarded for ACM‘s unjust enrichment, and TAA cannot recover additional damages for conversion. Similarly, the Court finds that TAA‘s trespass cause of action should be granted, but damages in relation to ACM‘s trespass are incorporated in the damages awarded for ACM‘s unjust enrichment, and TAA cannot recover additional damages for trespass. As to ACM‘s counterclaims, the Court finds that its breach of contract claim as to both the Letter Agreement and Mine Mill Site Lease, tortious interference, wrongful eviction, fraudulent misrepresentation and inducement, fraud by non-disclosure, trespass/misappropriation of business information, theft, trespass on defendant‘s property, and theft of defendant‘s mineral property claims should be denied. The Court also finds that ACM‘s detrimental reliance/promissory estoppel claim should be granted and that ACM is entitled to recover $75,000 from TAA as reliance damages. The Court finds that all other relief requested by the parties should be denied.

Fed. R. Civ. P. 56Century 21 Real Estate LLC v. Gharbi (April 19, 2010)Issue: Is Defendant’s continued use of the Century 21 mark a violation of the Lanham Act such that Plaintiff is entitled to actual damages under 15 U.S.C. § 1117(a) for violations of § 1114(1)(a) and § 1125(a) and statutory damages under 15 U.S.C. § 1117(d) for each violation of § 1125(d)(1), and is such debt resulting from the Lanham Act violations non-dischargable under § 523(a)(6)?Holding: Plaintiff’s Motion for Summary Judgment granted as to violation of 15 U.S.C. § 1114 and § 1125(a), and denied as to violations of § 1125(d), the dischargability issue, and damages.

Roberts v. Gharbi (December 8, 2009)Issue: Should Motion for Summary Judgment be granted to sell the property owned by the Debtors, free and clear of liens and all other interests, under 11 U.S.C. § 363(h) and Federal Rule of Bankruptcy Procedure 7001(3), when (1) partitioning the property is impracticable; (2) the benefit to the Estate of the sale of the Property, free of the interests of the co-owner, outweighs the detriment, if any, to the co-owner, the property; and (3) the Property is not used in the production, transmission, or distribution, for sale, of electric energy or of natural or synthetic gas for heat, light or power?Holding: The Trustee’s Motion for Summary Judgment should be granted because there are no disputed material facts and Debtors failed to produce any evidence to contradict the Trustee’s assertion that he has authority to sell the Property.

Corn v. Corn (July 11, 2008)Issue: At issue is the dischargeability of three debts incurred during the marriage of Channing and Elizabeth Corn. Plaintiff asserts that Defendant should remain liable to Plaintiff for certain marital debts pursuant to 11 U.S.C. § 523(a)(15), an exception to discharge for debts arising out of a divorce. Defendant contends in her motion for summary judgment that the Court must determine whether these obligations constitute spousal support under § 523(a)(5) (which she claims they are not), and therefore such debts are dischargeable.Holding: The Court grants the Plaintiff’s Motion for Summary Judgment and will deny the Defendant’s Motion for Summary Judgment. Plaintiff is entitled to judgment as a matter of law because the debts were not in the nature of a domestic support obligation but were incurred in the course of the dissolution of the parties’ marital relationship.

Fed. R. Civ. P. 59In re Save Our Springs (S.O.S.) Alliance, Inc. (June 16, 2008)Issue: Should the Court (1) alter or amend its order denying confirmation of the Debtor’s First Amended Plan of Reorganization and/or (2) grant a new trial to allow the Debtor to present additional evidence in support of confirmation of the Plan?Holding: The Court is unaware of any precedent for confirming a plan based on the principals’ beliefs, in lieu of substantiation, regarding prospects for payment. The evidence offered by the Debtor is not newly discovered so the Court denies the Motion.

Fed. R. Civ. P. 60In re Becker (Aug. 12, 2010)Issue: Do the Western District’s Local Rules regarding 21-day negative notice conflict with Federal Rule 3007’s requirement that the claimant be served 30 days before a hearing on the objection?Holding: Since the Movant did not respond to the objection to claim, he did not receive a hearing. When no hearing is requested within the negative notice period, Bankruptcy Rule 3007’s requirement of providing a party thirty day notice of a hearing becomes irrelevant. The Motion to Reconsider is denied.

McCready v. Becker (Aug. 6, 2010)Issue: Should the Court amend an order denying Plaintiff’s request to compel the execution of HHSC and SSA waivers by the Defendant?Holding: Plaintiff did not establish any grounds for relief required by Rule 60, and therefore the Motion is denied.

Lexus Energy Goldsmith v. Fidelity Land Company (June 8, 2009)Issue: Whether Defendant had a fair opportunity to present his claim or defense–i.e., whether he had adequate notice of the trial, as relief under Federal Rule of Civil Procedure 60(b)(6) from Judgment entered by Court should granted?Holding: The Court finds that, on balance, substantial justice in this case requires the setting aside of the final Judgment, and granting a new trial.

Fed. R. Evid. § 201Polk Sullivan, LLC v. The Parks (October 19, 2010)Issue: Whether Plaintiffs’ claims meet the plausibility standard required to withstand a motion to dismiss for failure to state a claim?Holding: The Court finds that the Plaintiffs pled with enough specificity under the doctrine of quasi-estoppel in North Carolina law to withstand a motion to dismiss. The Court also finds that Plaintiffs’ claim for specific performance of obligations to construct improvements and grant easements also withstands the motion to dismiss because at the pleading stage the Court is to take the Plaintiffs’ allegations as true. Defendants’ contention that the agreement was too burdensome and unspecific should not be considered when determining the plausibility of a 12(b)(6) motion to dismiss. The Motions to Dismiss are denied.

Equitable EstoppelIn re Save Our Springs (S.O.S.) Alliance, Inc. (August 11, 2008)Issue: Is Debtor a “Small Business Debtor” as Defined in 11 U.S.C. § 101(5D) and is this case a “Small Business Case” as Defined in 11 § 101(5D) and/or should the Debtor be judicially and/or equitably estopped from denying that it is a small business debtor as originally claimed in this case?Holding: The Court finds that the Debtor is a small business debtor, being judicially and equitably estopped at this stage of the case from changing that position.

Federal Preemption of State Law, Choice of LawIn re Arredondo-Smith (July 22, 2010)Issue: Whether the Debtor, who, under the choice-of-law provision of section 522(b)(3)(A) and Cal. Civ. Proc. Code § 704.710-730, may use California homestead exemption law extraterritorially to property located in Austin, Texas?Holding: California exemption law may apply extraterritorially to property located in the State of Texas, but because Debtor had declared “homestead” in California she may not now abandon such, and claim a homestead different than the family homestead that she and her former spouse previously established.

In re Camp (September 25, 2008)Issue: Whether Florida’s exemption laws are unavailable to the Debtor because they do not apply to property outside of Florida and whether the Debtor may claim the exemptions offered under 11 U.S.C. § 522(d)?Holding: Under § 522(b)(2) and (3)(A), the exemption laws of the State of Florida, including its opt-out statute (§ 222.20 of the Florida Statutes), apply to the Debtor herein. Additionally, the restriction in Fla. Stat. § 222.20 to non-residents is pre-empted by the federal choice of law provision of § 522(b)(3)(A), and therefore Florida’s opt-out from the exemptions provided in 11 U.S.C. § 522(d) binds the Debtor.

Judicial EstoppelIn re Save Our Springs (S.O.S.) Alliance, Inc. (August 11, 2008)Issue: Is Debtor a “Small Business Debtor” as Defined in 11 U.S.C. § 101(5D) and is this case a “Small Business Case” as Defined in 11 § 101(5D) and/or should the Debtor be judicially and/or equitably estopped from denying that it is a small business debtor as originally claimed in this case?Holding: The Court finds that the Debtor is a small business debtor, being judicially and equitably estopped at this stage of the case from changing that position.

In re Rector (February 11, 2008)Issue: Whether Debtor should be allowed to Avoid Lien pursuant to 11 U.S.C. § 522(f) when it is asserted that (1) not all of the property is exempt, in that its value exceeds the allowed exempt amount under 11 U.S.C. § 522(d)(5), and (2) the Debtor is judicially estopped by her prior allegations that claim was in fact secured by the property?Holding: With respect to the argument that the property is not fully exempt because its value exceeds the allowed amount under § 522(d)(5), Debtor’s counsel argued that Chick was mistaken on the facts regarding what was listed on the Amended Schedules, and the Court agrees and so finds that objection to the Motion to Avoid Lien on that basis should be overruled. Additionally, the Court also rejects Chick’s argument that the Debtor should be judicially estopped to challenge its lien, because Debtor’s having agreed that the claim is secured is not only entirely consistent with her attempt to avoid the lien, but it is also a necessary element in proving a right to such avoidance. As such, Debtor’s Motion to Avoid Lien of Chick & Associates, Inc. is granted.

Lack of Contract/Breach of ContractTexas Architectural Aggregate v. ACM-Texas, LLC (April 29 2010)Issue: In its Fifth Amended Petition, TAA plead the following causes of action: (1) lack of contract/breach of contract; (2) fraud; (3) unjust enrichment; (4) accounting and damages; (5) conversion; (6) trespass; (7) tortious interference; (8) negligence; and (9) TAA asks for a declaratory judgment regarding the rights, status and legal relations under the April 2, 1999 Letter Agreement. In its Second Amended Original Answer, ACM counter-claimed: (1) breach of contract; (2) breach of mine mill site lease; (3) tortious interference with property rights; (4) wrongful eviction; (5) fradulent misrepresentation and inducement; (6) fraud by non-disclosure; (7) detrimental reliance/promissory estoppel; (8) trespass/misappropriation of business information; (9) theft; (10) trespass by TAA onto defendant‘s property; 11) theft of defendant‘s mineral property; 12) specific performance; 13) credit and or offset; 14) ACM asks the court to enjoin TAA from harming employees and equipment; and 15) ACM asks the court to enter a declaratory judgment establishing its mineral, surface, and leasehold rights at Marble Canyon.Holding: The Court finds that the April 2, 1999 Letter Agreement is not an enforceable contract. The Court also finds that TAA‘s fraud, accounting, tortious interference, and negligence claims should be denied. As to TAA‘s unjust enrichment cause of action, the Court finds that it should be granted. In compensation for ACM‘s unjust enrichment, the Court finds that TAA is entitled to recover damages in the amount of $7,125,073.08. Further, the Court finds that TAA‘s conversion cause of action should be granted. Nevertheless, the court also finds that TAA‘s damages in relation to ACM‘s conversion are incorporated in the damages awarded for ACM‘s unjust enrichment, and TAA cannot recover additional damages for conversion. Similarly, the Court finds that TAA‘s trespass cause of action should be granted, but damages in relation to ACM‘s trespass are incorporated in the damages awarded for ACM‘s unjust enrichment, and TAA cannot recover additional damages for trespass. As to ACM‘s counterclaims, the Court finds that its breach of contract claim as to both the Letter Agreement and Mine Mill Site Lease, tortious interference, wrongful eviction, fraudulent misrepresentation and inducement, fraud by non-disclosure, trespass/misappropriation of business information, theft, trespass on defendant‘s property, and theft of defendant‘s mineral property claims should be denied. The Court also finds that ACM‘s detrimental reliance/promissory estoppel claim should be granted and that ACM is entitled to recover $75,000 from TAA as reliance damages. The Court finds that all other relief requested by the parties should be denied.

RecoupmentIn re Eggers (April 30, 2010)Issue: Is the right of recoupment a claim under §101(5) of the Bankruptcy Code?Holding: Second Motion for Relief from Stay granted in order to recoup, or alternatively, offset amounts awarded to the Creditors under a state court judgment signed and entered against royalties otherwise owed to the Debtor.

TrademarksCentury 21 Real Estate LLC v. Gharbi (April 19, 2010)Issue: Is Defendant’s continued use of the Century 21 marks a violation of the Lanham Act such that Plaintiff is entitled to actual damages under 15 U.S.C. §1117(a) for violations of §1114(1)(a) and §1125(a) and statutory damages under 15 U.S.C. §1117(d) for each violation of §1125(d)(1), and is such debt resulting from the Lanham Act violations dischargable due to Defendant’s bankruptcy?Holding: Plaintiff’s Motion for Summary Judgment granted as to violation of 15 U.S.C. §1114 and §1125(a), and denied as to violations of §1125(d), the dischargability Issue, and damages.

15 U.S.C. § 1117 (Lanham Act)Century 21 v. Gharbi (March 3, 2011)Issue: Whether the Defendant Mohammad Gharbi (“Defendant”) violated the Anticybersquatting Consumer Protection Act, 15 U.S.C. §1125(d), when he continued to use domain names which contained the Century 21 marks after his franchise agreements with Century 21 had been terminated? If so, what is the amount of damages to be awarded under § 1117(d), and will that award be held nondischargeable under 11 U.S.C. § 523(a)(6)?Holding: The Court finds (1) that the Defendant had a bad faith intent to profit from the use of the domain names and therefore violated 15 U.S.C. § 1125(d). The Court further finds that (2) Plaintiff should be awarded $25,000 per violation, or $75,000 total, plus attorneys’ fees as determined under Federal Rule of Bankruptcy Procedure 7054; and (3) that this award will be held nondischargeable under 11 U.S.C. § 523(a)(6) because Defendant caused Plaintiff a willful and malicious injury. The relief requested by the Plaintiff should be GRANTED.

Texas Architectural Aggregate v. ACM-Texas, LLC (April 29 2010)Issue: In its Fifth Amended Petition, TAA plead the following causes of action: (1) lack of contract/breach of contract; (2) fraud; (3) unjust enrichment; (4) accounting and damages; (5) conversion; (6) trespass; (7) tortious interference; (8) negligence; and (9) TAA asks for a declaratory judgment regarding the rights, status and legal relations under the April 2, 1999 Letter Agreement. In its Second Amended Original Answer, ACM counter-claimed: (1) breach of contract; (2) breach of mine mill site lease; (3) tortious interference with property rights; (4) wrongful eviction; (5) fradulent misrepresentation and inducement; (6) fraud by non-disclosure; (7) detrimental reliance/promissory estoppel; (8) trespass/misappropriation of business information; (9) theft; (10) trespass by TAA onto defendant‘s property; 11) theft of defendant‘s mineral property; 12) specific performance; 13) credit and or offset; 14) ACM asks the court to enjoin TAA from harming employees and equipment; and 15) ACM asks the court to enter a declaratory judgment establishing its mineral, surface, and leasehold rights at Marble Canyon.Holding: The Court finds that the April 2, 1999 Letter Agreement is not an enforceable contract. The Court also finds that TAA‘s fraud, accounting, tortious interference, and negligence claims should be denied. As to TAA‘s unjust enrichment cause of action, the Court finds that it should be granted. In compensation for ACM‘s unjust enrichment, the Court finds that TAA is entitled to recover damages in the amount of $7,125,073.08. Further, the Court finds that TAA‘s conversion cause of action should be granted. Nevertheless, the court also finds that TAA‘s damages in relation to ACM‘s conversion are incorporated in the damages awarded for ACM‘s unjust enrichment, and TAA cannot recover additional damages for conversion. Similarly, the Court finds that TAA‘s trespass cause of action should be granted, but damages in relation to ACM‘s trespass are incorporated in the damages awarded for ACM‘s unjust enrichment, and TAA cannot recover additional damages for trespass. As to ACM‘s counterclaims, the Court finds that its breach of contract claim as to both the Letter Agreement and Mine Mill Site Lease, tortious interference, wrongful eviction, fraudulent misrepresentation and inducement, fraud by non-disclosure, trespass/misappropriation of business information, theft, trespass on defendant‘s property, and theft of defendant‘s mineral property claims should be denied. The Court also finds that ACM‘s detrimental reliance/promissory estoppel claim should be granted and that ACM is entitled to recover $75,000 from TAA as reliance damages. The Court finds that all other relief requested by the parties should be denied.

15 U.S.C. § 1125Century 21 v. Gharbi (March 3, 2011)Issue: Whether the Defendant Mohammad Gharbi (“Defendant”) violated the Anticybersquatting Consumer Protection Act, 15 U.S.C. §1125(d), when he continued to use domain names which contained the Century 21 marks after his franchise agreements with Century 21 had been terminated? If so, what is the amount of damages to be awarded under § 1117(d), and will that award be held nondischargeable under 11 U.S.C. § 523(a)(6)?Holding: The Court finds (1) that the Defendant had a bad faith intent to profit from the use of the domain names and therefore violated 15 U.S.C. § 1125(d). The Court further finds that (2) Plaintiff should be awarded $25,000 per violation, or $75,000 total, plus attorneys’ fees as determined under Federal Rule of Bankruptcy Procedure 7054; and (3) that this award will be held nondischargeable under 11 U.S.C. § 523(a)(6) because Defendant caused Plaintiff a willful and malicious injury. The relief requested by the Plaintiff should be GRANTED.

17 U.S.C. § 106Walser v. TMG (January 25, 2011)Issues: (1) Is Walser’s Recording Agreement with Debtor’s predecessor-in-interest an executory contract? If so, does it allow Plaintiffs to pursue causes of action against the predecessor’s bankruptcy plan? (2) Did Debtors breach recording contracts with Walser, entitling Plaintiffs to damages? Is rescission a viable remedy? (3) Did Defendants breach a fiduciary duty with Walser? (4) Should the corporate veil be pierced with respect to Defendants, and Defendants be held liable for Plaintiff’s claims against Debtors?Holding: (1) The Court holds that the Walser contract was an executory contract that Debtors assumed after the predecessor’s bankruptcy and that Walser is prohibited from filing causes of action that relate to the predecessor’s bankruptcy. (2) Defendants are not required to surrender master recordings for breach of contract, and there is not sufficient evidence to establish fraud. The Court finds that the Defendants did breach the contract and that the Defendants failed to properly cure during the period provided for cure. Therefore, contract damages should be awarded to Plaintiffs. Plaintiffs’ rescission claims are barred by both Federal Copyright law and Texas state law. (3) Defendants did not breach a fiduciary duty because Debtors did not owe Walsen a fiduciary duty. (4) The Court finds that Plaintiffs’ contentions to pierce the corporate veil also fail because their claims fail to satisfy the requirements of Tex. Bus. Org. Code § 21.223.

17 U.S.C. § 201Walser v. TMG (January 25, 2011)Issues: (1) Is Walser’s Recording Agreement with Debtor’s predecessor-in-interest an executory contract? If so, does it allow Plaintiffs to pursue causes of action against the predecessor’s bankruptcy plan? (2) Did Debtors breach recording contracts with Walser, entitling Plaintiffs to damages? Is rescission a viable remedy? (3) Did Defendants breach a fiduciary duty with Walser? (4) Should the corporate veil be pierced with respect to Defendants, and Defendants be held liable for Plaintiff’s claims against Debtors?Holding: (1) The Court holds that the Walser contract was an executory contract that Debtors assumed after the predecessor’s bankruptcy and that Walser is prohibited from filing causes of action that relate to the predecessor’s bankruptcy. (2) Defendants are not required to surrender master recordings for breach of contract, and there is not sufficient evidence to establish fraud. The Court finds that the Defendants did breach the contract and that the Defendants failed to properly cure during the period provided for cure. Therefore, contract damages should be awarded to Plaintiffs. Plaintiffs’ rescission claims are barred by both Federal Copyright law and Texas state law. (3) Defendants did not breach a fiduciary duty because Debtors did not owe Walsen a fiduciary duty. (4) The Court finds that Plaintiffs’ contentions to pierce the corporate veil also fail because their claims fail to satisfy the requirements of Tex. Bus. Org. Code § 21.223.

17 U.S.C. § 507Walser v. TMG (January 25, 2011)Issues: (1) Is Walser’s Recording Agreement with Debtor’s predecessor-in-interest an executory contract? If so, does it allow Plaintiffs to pursue causes of action against the predecessor’s bankruptcy plan? (2) Did Debtors breach recording contracts with Walser, entitling Plaintiffs to damages? Is rescission a viable remedy? (3) Did Defendants breach a fiduciary duty with Walser? (4) Should the corporate veil be pierced with respect to Defendants, and Defendants be held liable for Plaintiff’s claims against Debtors?Holding: (1) The Court holds that the Walser contract was an executory contract that Debtors assumed after the predecessor’s bankruptcy and that Walser is prohibited from filing causes of action that relate to the predecessor’s bankruptcy. (2) Defendants are not required to surrender master recordings for breach of contract, and there is not sufficient evidence to establish fraud. The Court finds that the Defendants did breach the contract and that the Defendants failed to properly cure during the period provided for cure. Therefore, contract damages should be awarded to Plaintiffs. Plaintiffs’ rescission claims are barred by both Federal Copyright law and Texas state law. (3) Defendants did not breach a fiduciary duty because Debtors did not owe Walsen a fiduciary duty. (4) The Court finds that Plaintiffs’ contentions to pierce the corporate veil also fail because their claims fail to satisfy the requirements of Tex. Bus. Org. Code § 21.223.

28 U.S.C. § 157Parkhouse v. Johnson (April 2, 2012)Issue: The plaintiff initiated a purely state-court proceeding against the defendant/debtor long before the debtor filed bankruptcy under Chapter 11. Is it appropriate for the Bankruptcy Court to remand the case to the state court?Holding: (1) The Bankruptcy Court had only “related to” subject matter jurisdiction over the proceeding. (2) The proceeding did not involve any core issues as defined by 28 U.S.C. § 157. (3) Factors weighed in favor of remand, and accordingly, the Joint Motion to Remand was granted pursuant to 28 U.S.C. § 1452(b). (4) Pleadings filed subsequent to the Joint Motion to Remand were, therefore, dismissed as moot.

Trustee v. J. Howard Bass (February 16, 2011)Issues: (1) Whether the grant of power to the Bankruptcy Courts by the United States Congress, including 28 U.S.C. § 1334, and 28 U.S.C. § 157(a), are constitutional; (2) whether Plaintiff’s alter-ego theories survive the various motions to dismiss; (3) whether this Court can exercise personal jurisdiction over Esperada, a Caymanian corporation that transacts no business in the United States and for which the Debtor had held himself out as president; and (4) whether the Defendants may be substantively consolidated in this case?Holding: The Court finds that (1) this Court and the current bankruptcy system are constitutional; (2) Plaintiff sufficiently pled a complaint for alter-ego liability that survives the motions to dismiss; (3) this Court can exercise personal jurisdiction over Esperada for the purposes of discovery; and (4) substantive consolidation in general is permitted in the Fifth Circuit, but the issue of whether it is appropriate in this case will be reserved for later determination after discovery and a trial on the merits. Defendant’s Motions to Dismiss are DENIED.

28 U.S.C. § 1334Parkhouse v. Johnson (April 2, 2012)Issue: The plaintiff initiated a purely state-court proceeding against the defendant/debtor long before the debtor filed bankruptcy under Chapter 11. Is it appropriate for the Bankruptcy Court to remand the case to the state court?Holding: (1) The Bankruptcy Court had only “related to” subject matter jurisdiction over the proceeding. (2) The proceeding did not involve any core issues as defined by 28 U.S.C. § 157. (3) Factors weighed in favor of remand, and accordingly, the Joint Motion to Remand was granted pursuant to 28 U.S.C. § 1452(b). (4) Pleadings filed subsequent to the Joint Motion to Remand were, therefore, dismissed as moot.

Trustee v. J. Howard Bass (February 16, 2011)Issues: (1) Whether the grant of power to the Bankruptcy Courts by the United States Congress, including 28 U.S.C. § 1334, and 28 U.S.C. § 157(a), are constitutional; (2) whether Plaintiff’s alter-ego theories survive the various motions to dismiss; (3) whether this Court can exercise personal jurisdiction over Esperada, a Caymanian corporation that transacts no business in the United States and for which the Debtor had held himself out as president; and (4) whether the Defendants may be substantively consolidated in this case?Holding: The Court finds that (1) this Court and the current bankruptcy system are constitutional; (2) Plaintiff sufficiently pled a complaint for alter-ego liability that survives the motions to dismiss; (3) this Court can exercise personal jurisdiction over Esperada for the purposes of discovery; and (4) substantive consolidation in general is permitted in the Fifth Circuit, but the issue of whether it is appropriate in this case will be reserved for later determination after discovery and a trial on the merits. Defendant’s Motions to Dismiss are DENIED.

28 U.S.C. § 1412In re BDRC Lofts, Inc.(January 31, 2013)Issue: Did the fact that 23 of 29 creditors, as well the majority of the Debtor's assets, and a pending lawsuit against the Debtor, were located in another district provide sufficient grounds to transfer venue in a Chapter 11 case?Holding: 28 U.S.C. § 1412 allows the Bankruptcy Court to transfer venue in the interest of justice or convenience of the parties. In this case, the primary players in creating the Chapter 11 Plan reside in Austin, the Debtor's books and financial information are located in Austin, and the Court first heard the Motion to Transfer Venue seven months after Debtor filed bankruptcy. As such, there are no issues of justice or fairness that merit transfer of the case. Motion denied.

28 U.S.C. § 1452Parkhouse v. Johnson (April 2, 2012)Issue: The plaintiff initiated a purely state-court proceeding against the defendant/debtor long before the debtor filed bankruptcy under Chapter 11. Is it appropriate for the Bankruptcy Court to remand the case to the state court?Holding: (1) The Bankruptcy Court had only “related to” subject matter jurisdiction over the proceeding. (2) The proceeding did not involve any core issues as defined by 28 U.S.C. § 157. (3) Factors weighed in favor of remand, and accordingly, the Joint Motion to Remand was granted pursuant to 28 U.S.C. § 1452(b). (4) Pleadings filed subsequent to the Joint Motion to Remand were, therefore, dismissed as moot.

Issue: Whether the Defendant violates the FCRA by obtaining and posting the Plaintiff’s credit report on the internet without the Plaintiff’s consent or without a permissible purpose.Holding: The Court found that the Defendant violated the FCRA first, when he admitted to obtaining the Plaintiff’s credit report and second, when he posted that credit report on the internet. Further, the Defendant’s violation was willful and warranted an award of statutory damages, punitive damages, and reasonable attorney’s fees and costs.